Article 338A

Article 338A of the Constitution of India establishes the National Commission for Scheduled Tribes (NCST) as a constitutional body dedicated to protecting and promoting the interests of the Scheduled Tribes (STs). It provides the Commission with extensive powers to investigate, monitor, and advise on all matters concerning the constitutional and legal safeguards available to Scheduled Tribes, thereby reinforcing India’s commitment to social justice and inclusive development.

Historical Background and Constitutional Evolution

Before the insertion of Article 338A, the functions relating to both Scheduled Castes (SCs) and Scheduled Tribes (STs) were performed by a single institution under Article 338, known as the National Commission for Scheduled Castes and Scheduled Tribes. However, due to the differing socio-economic, geographical, and cultural contexts of these communities, it became necessary to create separate constitutional mechanisms for more focused attention.
Accordingly, the 89th Constitutional Amendment Act, 2003 (effective from 19 February 2004) bifurcated the existing commission into two distinct bodies:

1. The National Commission for Scheduled Castes (under Article 338), and
2. The National Commission for Scheduled Tribes (under Article 338A).

This division allowed for greater specialisation in addressing the unique challenges faced by Scheduled Tribes, especially in relation to land rights, forest access, displacement, and socio-economic development.

Composition and Appointment

Under Article 338A(2), the National Commission for Scheduled Tribes comprises:

• A Chairperson,
• A Vice-Chairperson, and
• Three other Members.

All members of the Commission are appointed by the President of India, who also determines their tenure, conditions of service, and remuneration through rules made under Article 338A(4). The composition aims to include individuals with experience and expertise in matters concerning tribal welfare, governance, and constitutional law.
The Commission operates as a constitutional body with administrative independence but functions under the oversight of the Union Government through its reports to the President.

Powers and Functions of the Commission

Article 338A(5) enumerates the wide-ranging duties of the National Commission for Scheduled Tribes, which can be summarised as follows:

• Investigation and Monitoring: To investigate and monitor the implementation of constitutional and legal safeguards for Scheduled Tribes and to assess their effectiveness.
• Inquiry into Complaints: To inquire into specific complaints regarding the deprivation of rights and safeguards of Scheduled Tribes.
• Advisory Role: To advise the Union and State Governments on major policy matters affecting the social, economic, and educational development of Scheduled Tribes.
• Participation in Planning: To participate in the planning process of socio-economic development programmes for STs and to evaluate their progress.
• Reporting to the President: To submit annual and special reports to the President on the working of safeguards and make recommendations for improving their implementation.
• Promotion of Welfare Measures: To recommend legal and administrative reforms for ensuring equality, protection, and welfare of the Scheduled Tribes.

The Commission thus serves as both a watchdog and an advisory institution, bridging the gap between policy formulation and its impact on tribal communities.

Powers of a Civil Court

For the purpose of performing its functions effectively, the NCST enjoys powers equivalent to those of a civil court under the Code of Civil Procedure, 1908. These powers include:

• Summoning and enforcing the attendance of any person and examining them under oath.
• Requiring the production and discovery of documents.
• Receiving evidence on affidavits.
• Requisitioning public records or copies from any court or office.
• Issuing commissions for the examination of witnesses or documents.

These quasi-judicial powers enable the Commission to function independently and to conduct investigations with authority and credibility.

Consultation and Reporting Mechanisms

Article 338A(9) makes it mandatory for the Union and State Governments to consult the Commission on all major policy matters affecting Scheduled Tribes. This ensures that tribal concerns are duly considered before policies or legislation are enacted or implemented.
The President of India receives the Commission’s annual and special reports, along with recommendations and findings. The President then causes these reports to be laid before Parliament with a memorandum of action taken on the Commission’s recommendations.
At the State level, these reports are forwarded to the Governor, who in turn lays them before the State Legislature for discussion and appropriate action.

Relationship with Other Constitutional Provisions

Article 338A operates in close association with other constitutional provisions concerning the protection and welfare of Scheduled Tribes, such as:

• Article 46: Directive to the State to promote the educational and economic interests of the weaker sections, particularly SCs and STs.
• Article 244: Administration of Scheduled Areas and Tribal Areas through special governance structures under the Fifth and Sixth Schedules.
• Article 275(1): Provision for grants-in-aid to States for the welfare of Scheduled Tribes and for the administration of Scheduled Areas.
• Article 342: Empowerment of the President to specify which tribes or tribal communities shall be deemed to be Scheduled Tribes for the purposes of the Constitution.

Together, these provisions create a framework that recognises the distinctive needs of tribal communities and ensures their protection within the democratic structure.

Jurisprudence and Case Laws

Although no major Supreme Court cases have directly interpreted Article 338A, several landmark judgments have addressed the rights of Scheduled Tribes and the implementation of constitutional safeguards:

• Samatha v. State of Andhra Pradesh (1997): The Supreme Court upheld the right of Scheduled Tribes over land in Scheduled Areas, ruling that government leases to non-tribals were unconstitutional.
• Niyamgiri case (Orissa Mining Corporation v. Ministry of Environment and Forests, 2013): The Court reaffirmed the rights of tribal communities to protect their cultural and religious identity, recognising the Gram Sabha’s authority over land and forest resources.
• Kashmir Singh v. Union of India (2008): The Court emphasised that the constitutional and statutory protections for Scheduled Tribes are essential components of India’s social justice system.

These decisions highlight the centrality of the NCST’s role in monitoring and ensuring compliance with such judicial principles.

Challenges Faced by the Commission

Despite its constitutional mandate, the NCST faces several challenges in fulfilling its functions effectively:

• Limited enforcement power: The Commission can only make recommendations; it lacks the authority to implement or compel compliance.
• Administrative dependence: Operational and financial constraints often limit the scope of investigations and follow-up actions.
• Political and bureaucratic resistance: Recommendations of the Commission are sometimes delayed or disregarded at the implementation stage.
• Complex tribal issues: Problems such as displacement due to industrialisation, land alienation, lack of education, and health disparities require coordinated efforts beyond the Commission’s jurisdiction.

Strengthening the autonomy and capacity of the NCST remains a key policy imperative for improving tribal welfare.

Contemporary Significance and Recent Developments

The National Commission for Scheduled Tribes continues to play an active role in addressing the persistent inequalities faced by tribal communities. In recent years, it has:

• Examined issues related to forest rights, land alienation, implementation of the Forest Rights Act, 2006, and PESA Act, 1996.
• Provided recommendations on rehabilitation and resettlement policies for displaced tribal populations.
• Advocated for improved access to education, healthcare, and employment opportunities in tribal areas.

Recent government initiatives, such as the Vanbandhu Kalyan Yojana, Eklavya Model Residential Schools, and Development Action Plans for Scheduled Tribes (DAPST), have been guided by the policy inputs and evaluations of the NCST.

Significance in India’s Social Justice Framework

Article 338A embodies the Indian Constitution’s vision of protective discrimination and participatory governance. The NCST acts as a watchdog, advisor, and facilitator—ensuring that development reaches tribal communities without undermining their identity, autonomy, and cultural heritage.